England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		2 3 2007

Mr Justice Burton :

1. Daniel Antonius Delker was convicted by a majority of 10:2 on 15 May 2003 at the Crown Court at Leeds before the Honourable Mr Justice Gage and a jury of one count of murder. He was then 24, and is now 27. The jury also convicted his co-defendant David Sandham, who was a similar age. The jury convicted both defendants of murdering the victim, James Bowman, who was the ex-boyfriend of the defendant's mother. The suggested motive for the crime was an intention to warn off the victim from trying to return to live with her. The victim was left for dead, and discovered alive on the hillside by a passerby on 15 September 2002, dying before medical help arrived. Although the defendant and the co-defendant denied their guilt, they were connected to the crime by forensic evidence and admissions made to each of their respective girlfriends. The victim was assaulted about the head and body with fists, feet, sticks and rocks, causing a total of 88 injuries to his head and body, including severe head injuries, and was stabbed 13 times with a knife, of which two stab wounds made deep incisions into the victim's back causing injuries to both lungs.
2. In sentencing the defendant, the learned Judge said:

"Having found [the deceased] you both savagely assaulted him, beating him about the head with fists, sticks and rocks. I am quite satisfied on the evidence that I have heard that one of you had a knife with which, in the course of the assault, he was stabbed no less than 13 times. To my mind it matters not which of you had the knife. You share equally the blame and responsibility for this dreadful crime. "

3. The defendant and co-defendant were given a mandatory life sentence. In the case of both, the trial judge recommended a tariff period of 14 years. In his sentencing remarks, the leaned Judge stated as follows, in relation to the defendant:

"You, Delker, are a young man of good character. But having seen you both in the witness box, and observed you during the trial, my view is that you, Delker, were the prime mover in this crime. On the other hand you are a man of good character, whereas you, Sandham, have a previous conviction for manslaughter which involved the use of a knife: I take into account what your Counsel have said, that that followed years of bullying and abuse by your elder brother. Taking all the factors into account in relation to this matter, I see no reason to differentiate between the two of you."

4. The learned Judge expressed the same opinion in his report to the Home Secretary:

"In my opinion, Delker was the prime mover in this offence in the sense that it was his idea to visit his mother and warn off the victim. It is not possible to say which of the two defendants used the knife but, in my view, each was equally to blame for the incident and it matters not who actually stabbed the deceased. Delker was a man of good character; whereas Sandham has a previous conviction for manslaughter. Taking all factors into account, I see no reason to differentiate between the two defendants."

5. In recommending the tariff period of 14 years for the defendant, the trial judge noted that there were aggravating factors, against which the only mitigating factors to be set were the defendant's age of 24 and the fact that he had no previous convictions. He set out the aggravating factors as follows:

"This was a savage assault. It is clear that both defendants sought out the victim with the intention of warning him off. It is not clear whether they always intended to assault him or whether it was a spur of the moment decision. Some 20 blows were struck to the head of the victim and there were 13 stab wounds. It seems probable that the stab wounds were inflicted with the intention of killing the victim after he had been severely injured and disabled by blows to his head."

6. The trial judge's recommendation was not, in the event, considered by the Lord Chief Justice: an application for leave to appeal against conviction was dismissed on paper and again on renewal before the full court on 27 July 2003. By virtue of its not having been considered by the Lord Chief Justice or by the Home Secretary, this period of 14 years has remained the tariff until now, when I am required to consider, pursuant to paragraphs 3 and 6 of Schedule 22 of the Criminal Justice Act 2003 ("the 2003 Act"), what minimum term should be imposed.
7. In setting the minimum term, I take account of the general principles set out in Schedule 21 of the 2003 Act and the guidance contained in the Lord Chief Justice's letter of 10 February 1997, as set out in paragraph IV.49.18-22 of the Practice Direction issued on 29 July 2004.
8. This case does not fall within paragraph 4(1) or 5(1) of Schedule 21. I therefore take as the starting point a term of 15 years.
9. There is no impact statement from anyone connected with the deceased. As for the defendant, he has not requested an oral hearing, but he has himself put in an articulate representation on his own behalf, which is accompanied by favourable references from the Prison Officer at HMP Gartree who has been the defendant's personal officer, and the Education Manager at the Prison. In particular he refers to his concern for his young son, who is now nearly 6.
10. I have no reason to believe that the recommendation of the trial judge would have been increased by the Secretary of State (see paragraphs 26-45 of the judgment of the Court of Appeal Criminal Division by Lord Woolf CJ in Sullivan, Gibbs, Elener & Elener [2005] 1 CAR(S) 67(308)). Thus, by reference to paragraph 10a of Schedule 22 of the 2003 Act, that is the ceiling to any order that I can now make upon my own review.
11. I have carefully reconsidered the recommendations of the trial judge, who, as he himself makes clear, had, and took, the opportunity to take careful note of the defendant in the witness box and during the trial. For the reasons he gives it is plain that there was a substantial element of premeditation, and that there must have come a time that whatever the original intent was, the injuries to the deceased, which continued to be inflicted upon him, evidenced an intention to kill. The mitigating factors that are listed in paragraph 11 of the Schedule are, however, not exhaustive, and I am satisfied that I can take into account, to a very limited extent, the combination of the previous good character of the defendant coupled with his obvious determination, exhibited in the references, to reconstruct his life.
12. I conclude that the appropriate minimum term is 13½ years, less the period spent in custody on remand, a period of 7 months and 24 days, giving a minimum term of 12 years 10 months and 6 days.
13. The minimum term is the minimum amount of time the defendant will spend in prison from the date of sentence before the Parole Board can order early release. If it remains necessary for the protection of the public, the defendant will continue to be detained after that date. When the defendant has served the minimum term, and if the Parole Board decides to direct his release, he will remain on licence for the rest of his life and may be recalled to prison at any time.